Investor Guide to Europe 2014
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TYPES of oWnERSHIP
Single ownership
(Alleineigentum,propriété individuelle)
•
(Single) Ownership is defined as the right to use, receive the
benefits of, and dispose of a property in the most absolute
manner, subject only to a non-prohibited use.
•
Any title, transfer or change in the ownership right in immo-
vable property must be registered in the local land register
(Grundbuch, registre foncier)
.
Co-ownership
(Miteigentum, copropriété)
•
Co-ownership is ownership by several persons of a share in a
property which is physically undivided but fractioned into co-
ownership units
(Miteigentumsanteile, parts de copropriété)
.
•
The division of the property is typically set-up and described
in regulations
(Nutzungs- und Verwaltungsordnung, règlement
d’utilisation et d’administration)
.
•
Co-owners have a pre-emption right in case of sale of an other
co-ownership share
(Vorkaufsrecht, droit de préemption)
.
•
The co-owners have the right to demand the end of the co-
ownership through the sale of the property or physical division;
the right may be suspended by mutual agreement of the co-
owners for up to 50 years but cannot be fully waived.
Condominium Property
(Stockwerkeigentum, propriete par étages)
•
Condominium property is special type of co-ownership, assi-
gning each co-owner a co-ownership interest in the entire pro-
perty and a right to use a part of the property (unit) exclusively.
•
The division of the property is set-up in a deed of constitution
(Begründungsakt, acte constitutif)
and described in regulations
(Stockwerkeigentümerreglement, règlement de propriété
par étages)
which identify each unit, indicate its location and
include a complete description of the private and common
areas.
•
Each co-owner has a right to use the common areas and
shares the related service charges.
Building Right
(Baurecht, droit de superficie)
•
A building right is an easement on immovable property entit-
ling a third party
(Baurechtnehmer, bénéficiaire du droit de
superficie)
to erect or maintain a construction above or below
ground of such ground (usually against payment of a rent).
•
The third party entitled to building right enjoys a right in rem
which may be mortgaged.
•
The maximum term is 100 years.
•
The owner of the underlying property has a pre-emption right
(Vorkaufsrecht, droit de préemption)
in case of sale of the buil-
ding right and owner of the building right has a pre-emption
right in case of a sale of the underlying property.
RIGHTS affECTInG oWnERSHIP
Î
Easement
(Dienstbarkeit, servitude)
•
An easement is a burden imposed upon a property, for the use
and utility of another property
(Grunddienstbarkeit, servitude
foncière)
or of a person
(Personaldienstbarkeit, servitude
personnelle).
•
Easements are transferred with the related property.
Î
Charge on Immovable Property
(Grundpfand, gage immobilier)
•
Charges are transferred with the related property.
•
The are two practically relavant forms: mortgage and mor-
tgage certificate :
Mortgage
(Grundpfandverschreibung, hypothèque)
•
May be created to secure any kind of debt, be it current, future
or contingent.
•
Is created in a specific rank and entitles the creditor in an
event of default on the part of the debtor, to be paid out of the
proceeds of the sale of the property.
•
Any agreement stipulating that the property subject to the
charge will become the property of the creditor in the event of
default on the part of the debtor is invalid.
•
The creation of more than one mortgage over the same pro-
perty is possible.
Mortgage Certificate
(Schuldbrief.cédule hypothécaire)
•
Creates a personal debt secured by a charge on immovable
property.
•
Is created in a specific rank and entitles the creditor in an
event of default on the part of the debtor, to be paid out of the
proceeds of the sale of the property.
•
Any agreement stipulating that the property subject to the
charge will become the property of the creditor in the event of
default on the part of the debtor is invalid.
•
The creation of more than one mortgage certificate over the
same property is possible.
•
Two forms of mortgage certificates exist: one with physical
certificate
(Papier-Schuldbrief, cédule hypothécaire sur papier)
and one without
(Register-Schuldbrief, cédule hypothécaire de
register).
Pre-emption right
•
A pre-emption right is an option to acquire a property in
case of a sale at a fixed price or at the price agreed with the
acquirer, i.e. the right to substitute the acquirer in a real estate
transfer.
•
The most relevant types are:
- The statutory pre-emption rights of co-owners and the
parties of a building right.
- Contractually agreed pre-emptive rights (for example in
favour of a tenant or neighbour).
- Statutory pre-emption rights by certain cantons or com-
munes for residential properties (for example in Geneva).
PRoPERTY LaW
